“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Fifth Circuit Judge James Ho cast the deciding vote to partly affirm a lower court decision  disregarding past precedent,  ruling that compensatory damages to a seaman should be significantly reduced because his own actions allegedly contributed to an injury he suffered when he followed negligent orders. The December 2020 case was Knight v. Kirby Offshore Marine Pac., L.L.C..

Andrew Lee Knight was a dedicated seaman who worked aboard a tugboat owned by Kirby Offshore Marine Pacific, L.L.C. (Kirby). At a time when conditions were hazardous, including 20 mile per hour winds and rolling of the boat in open waters, Knight and another worker were ordered to switch out a heavy line used to secure a barge to the ship. Knight explained that he lost his balance due to the rocking of the boat, causing him to step on the line and suffer serious injury to his ankle and leg, which has prevented him from returning to his old job. Knight sued under the federal Jones Act, which allows injured sea workers to recover for damages due to negligence while working at sea,

The trial court held for Knight, stating that since the order was given in dangerous conditions, Kirby was negligent. The court also ruled, however, that Knight was contributorily negligent for failing to watch his footing and significantly reduced the damages to him, even though he argued that he could not be held contributorily negligent under the circumstances in accord with the Fifth Circuit’s Williams case, which stated that “a seaman may not be contributorily negligent for carrying out orders that result” in injury. The case was appealed to the Fifth Circuit.

Trump Judge Ho cast the deciding vote in a 2-1 decision that rejected Knight’s argument and ruled that damages that he had received could and should be reduced because of his alleged contributory negligence. Although Ho and the other judge in the majority disagreed on precisely how to interpret Williams, they both agreed that it did not prevent a significant reduction based on contributory negligence of the damages awarded to a worker like Knight for his employer’s negligence, at least when the seaman was carrying out a “general order” as in Knight’s case. Although they believed that the lower court had improperly faulted Knight more than it should have, the majority agreed that the damage award could be significantly reduced and sent the case back to the lower court. The majority also sustained what it itself admitted was a damages award for Knight’s pain and suffering that was “lower” than usual “on the scale of adequate amounts.”

Judge Jennifer Walker Elrod, who was nominated by President George W Bush, strongly dissented. She explained that Williams  is “long-standing precedent,” which has been reaffirmed in the Fifth Circuit and elsewhere, that makes clear that a worker like Knight cannot be held contributorily negligent under the Jones Act when he was following orders, whether considered general or specific. She went on to document that under prior precedent, the lower court’s relatively small award of $60,000 for pain and suffering was “plain error” under past precedent, particularly in light of the three reconstructive surgeries and over 100 physical therapy sessions which Knight had to endure.

However, because of Trump Judge Ho’s deciding vote, Knight will clearly not receive adequate damages for the severe injuries he suffered. In addition, companies that transport natural resources and other products by sea will now have greater ability to engage in negligent conduct harming their employees without paying adequate damages in the Fifth Circuit.

Note; the initial draft of this post was prepared by PFAW legal intern Oliver Telusma.